The opinion of the court was delivered by: LUONGO
Rudolph E. Boyance, Lenox B. Markley, William Keifaber, Edward Ellis, Herman Myron Feldman, Edwin Bescoe, Samuel Gold and John David Roberts were charged in count 1 of this indictment with conspiracy to possess, conceal, pass, deliver, sell, transfer, etc., counterfeit $ 20 Federal Reserve notes in violation of 18 U.S.C.A. § 371. Boyance and Keifaber were also charged in counts 2 through 5 of the same indictment with the substantive offenses of possessing and delivering counterfeit $ 20 notes.
Boyance, Bescoe and Roberts pleaded guilty. The remaining defendants were tried by court and jury. Keifaber, Ellis, Feldman and Gold were found guilty on the charge of conspiracy and Keifaber was also found guilty on the substantive offenses charged in counts 3 and 4. The jury returned a verdict of 'not guilty' on the conspiracy charge against Markley and, by a directed verdict, Keifaber was acquitted on the substantive offense charged in count 2.
The four convicted defendants filed post trial motions, all of which have since been withdrawn except Feldman's motions for judgment of acquittal, or in the alternative, for a new trial. Feldman's motions are before me for consideration and will be discussed together. The grounds asserted by Feldman are generally (1) variations between the indictment and proof; and (2) alleged trial errors.
1. Variations between indictment and proof:
Two variations have been alleged, (a) that a single conspiracy was charged and multiple conspiracies were proven, and (b) that Feldman was charged with conspiring within the Eastern District of Pennsylvania and the proof failed to show that he was ever present within this district.
The testimony, viewed in the light most favorable to the government ( United States v. Carlucci, 288 F.2d 691 (3rd Cir., 1961), cert. den. 366 U.S. 961, 81 S. Ct. 1920, 6 L. Ed. 2d 1253 (1961); United States v. Amedeo, 277 F.2d 375 (3rd Cir., 1960) reveals the following:
In April 1961, defendants Boyance and Keifaber were in possession of a quantity of counterfeit $ 20 Federal Reserve notes, one of which was given by Boyance to a Mr. Crudo from whom it was seized by Treasury agents. The occurrence was testified to by Crudo and the note was identified as a counterfeit and put in evidence.
Roberts, one of the defendants, testified that he met Boyance in jail and upon Roberts' release from jail he was picked up by Boyance and Keifaber and recruited by them to pass 'bad' $ 20 notes, which he did.
Carmen Motto, a special agent for the Treasury Department, testified to negotiations wherein he, posing as 'Nickey Spina' from New York, dickered with Boyance and Keifaber for the purchase of counterfeit $ 20 notes from them. The negotiations commenced in April 1961 and continued off and on into May when Boyance informed Motto that he was sending two persons to New York to see him to make a deal.
Bescoe (Boyance's brother-in-law) and Ellis were the persons who went to New York on that mission. Bescoe testified he was to get $ 18,000 of good money from Motto, there was to be an interval of an hour or so after the receipt of the good money, and Ellis was then to obtain $ 100,000 of counterfeit money from someone whom Ellis knew, after which Motto would be told where to pick up the counterfeit notes. The deal fell through when Motto refused to deal except on a hand to hand basis and Bescoe and Ellis returned to Philadelphia.
Following that failure, Boyance, in the presence of Bescoe, introduced Wood to Ellis who thereafter informed Wood that in dealing through Boyance and Keifaber he was dealing with the wrong persons, since he (Ellis) was the contact and the only one who could make the deal for counterfeit money. He explained that the others had gone with him on prior occasions to pick up some samples and that they went back without his knowing it.
From Wood's testimony it appears that there were numerous discussions between him and Ellis about obtaining counterfeit $ 20 notes. In the beginning of July 1961, he went to New York with Ellis where they met one Oberman and as a result of that meeting, Ellis made a telephone call addressing the person to whom he was speaking as 'Muzzy'. Ellis gave Wood the address, 180 Prospect Street, East Orange, New Jersey, to write down. The two then went to that address to an aparement where the name on the bell was 'H. Myron Feldman'. When they entered the apartment Ellis greeted Feldman by the name 'Muzzy' to which Feldman responded, referring to Ellis as 'Eddie'. Feldman indicated that he knew they were there for the 'twenties'. After taking certain precautions as to Wood's identity, Feldman announced the terms on which he would deal, stating that he had gotten rid of enough of the counterfeit money and was not 'hurting', that he had a substantial quantity left that was buried, and that he would not take chances. The terms dictated by Feldman were that Wood was to bring good money to Feldman and several hours later he would be told where he could pick up the counterfeit. As evidence of his good faith, Feldman offered to give Wood a note against his bank account. Although a deal was arranged, it was not consummated, apparently because of suspicions Feldman had about Wood. When the efforts to obtain counterfeit money from Feldman proved unsuccessful, Ellis then led Wood to Gold who made attempts to secure counterfeit money from another source but his efforts proved unsuccessful.
In addition to the testimony of the several witnesses referred to, telephone company records were produced indicating that calls were made from the hotel room in New York where Ellis and Wood had stayed to a telephone in East Orange listed in the name of M. Feldman; calls from that hotel room to Ellis' home in New Jersey; a call from Wood's room at the Essex Hotel in Philadelphia to the telephone in East Orange ...